Crockett & Myers, Ltd. v. Napier, Fitzgerald & Kirby, LLP , 567 F. App'x 527 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 10 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CROCKETT & MYERS, LTD.; J. R. No. 12-15753
CROCKETT, Jr.,
D.C. No. 2:05-cv-00877-PMP-
Plaintiffs-counter-defendants GWF
- Appellees,
v. MEMORANDUM*
NAPIER, FITZGERALD & KIRBY, LLP;
BRIAN P. FITZGERALD,
Defendants-counter-claimants
- Appellants.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, Senior District Judge, Presiding
Submitted April 7, 2014**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: BENAVIDES,*** TALLMAN, and CLIFTON, Circuit Judges.
Napier, Fitzgerald & Kirby, LLP and Brian Fitzgerald (collectively
“Fitzgerald”) appeal from the district court’s order denying prejudgment interest
and costs in their suit against Crockett & Myers, Ltd. (“Crockett”). This is the
third round of appeals we have heard in this matter. We have jurisdiction pursuant
to 28 U.S.C. § 1291, and we affirm.
Prejudgment interest is a substantive matter governed by Nevada law. See
In re Exxon Valdez, 484 F.3d 1098, 1101 (9th Cir. 2007). Under Nevada Revised
Statute 99.040(1), prejudgment interest is recoverable “[u]pon contracts, express or
implied,” or “[u]pon money received to the use and benefit of another and detained
without his or her consent.” Nev. Rev. Stat. §§ 99.040(1)(a), (c). “Prejudgment
interest . . . is only allowed where the damage award is known or ascertainable at a
time prior to entry of judgment, either by reference to amounts fixed by the
contract, or from established market prices.” Hornwood v. Smith’s Food King No.
1, 807 P.2d 208, 214 (Nev. 1991) (citing Jeaness v. Besnilian, 706 P.2d 143, 147
(Nev. 1985)). We review the district court’s denial of prejudgment interest under
***
The Honorable Fortunato P. Benavides, Senior United States Circuit
Judge for the U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
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state law for abuse of discretion. Champion Produce, Inc. v. Ruby Robinson Co.,
Inc., 342 F.3d 1016, 1020 (9th Cir. 2003).
Here, the district court applied Nevada Revised Statute 99.040(1) and
concluded that Fitzgerald was not entitled to prejudgment interest because the
value of Fitzgerald’s performance was indefinite and unascertainable until
judgment. We agree. Assuming Nevada Revised Statute 99.040(1) allows
recovery of prejudgment interest on claims of unjust enrichment, the district court
did not err in concluding that prejudgment interest was improper here. The
reasonable value of Fitzgerald’s services was not ascertainable from a standard
fixed in the contract or from established market prices. See Jeaness, 706 P.2d at
147. As the district court recognized, Fitzgerald himself offered several different
methods to measure his quantum meruit award, and the exact amount due was
uncertain until a prior appeal established the proper measure of damages. See
Crockett & Myers, Ltd. v. Napier, Fitzgerald & Kirby, LLP, 664 F.3d 282, 286 (9th
Cir. 2011). Because the amount of money due to Fitzgerald was “neither definite
nor readily ascertainable until judgment,” M.C. Multi-Family Dev., L.L.C. v.
Crestdale Assocs., Ltd., 193 P.3d 536, 547 (Nev. 2008), the district court did not
abuse its discretion in refusing to award Fitzgerald prejudgment interest.
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Even in diversity cases, an award of costs in federal court is governed by
Federal Rule of Civil Procedure 54(d). Champion Produce, 342 F.3d at 1022.
While Rule 54(d) creates a presumption in favor of awarding costs to the
prevailing party, the Rule vests discretion in the district court to refuse to award
costs. See Fed. R. Civ. P. 54(d)(1); Ass’n of Mexican-American Educators v. State
of California, 231 F.3d 572, 591 (9th Cir. 2000) (en banc). “On appeal, we
determine whether the reasons that the district court has specified are appropriate
and whether, considering those reasons, the court abused its discretion in denying
costs.” Ass’n of Mexican-American Educators, 231 F.3d at 592.
Here, the district court gave three reasons for denying costs to Fitzgerald: (1)
the issues in the case were close and difficult, (2) Fitzgerald’s recovery was partial,
and (3) Crockett litigated in good faith. We have previously recognized each of
these as appropriate reasons for denying costs. Champion Produce, 342 F.3d at
1023; Ass’n of Mexican-American Educators, 231 F.3d at 592. Because its stated
reasons are sufficient to support the decision, the district court did not abuse its
discretion in denying costs to Fitzgerald.
AFFIRMED. Each party shall bear its own costs on this appeal.
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